The prison population in England and Wales has a higher mortality rate than in the community, with approximately one third of all deaths being self-inflicted. As the table across the page shows, the number of deaths (including self-inflicted deaths) is currently increasing year on year.
Many of the prison death cases which find their way into litigation relate to selfinflicted deaths and consequently raise issues surrounding the management of the prisoner, at each stage of their custodial history.
The role of the prison healthcare team
Prisoners are entitled to the same standard of healthcare and treatment as those in the wider community (Zinzuwadia –v- Home Office  EWCA Civ 842). Healthcare teams will see prisoners as part of a first reception health screen upon arrival at any new establishment and then at any subsequent appointments made by the prisoner. New and vulnerable prisoners are also often referred to the mental health team or a drug dependency unit for support.
In addition, healthcare will be asked to contribute to ‘Assessment, Care in Custody and Teamwork’ (ACCT) reviews where the process is instituted. ACCT is a prisonercentred flexible care-planning system, designed to reduce the risk of suicide and self-harm. In this context, the common law duty of care owed to prisoners is to take reasonable steps to assess and manage reasonably foreseeable risks of self-harm.
So, in what circumstances will a court conclude that this duty has been breached?
Breach of duty
Following a death in custody, a claim for clinical negligence is often brought, and runs alongside the inquest. However, the mere fact of a death does not necessarily imply a breach of the duty of care owed to the prisoner involved. The same test will apply as in any other claim for clinical negligence, relying on the Bolam –v- Friern Hospital Management Committee 1 WLR 5 test supplemented by Bolitho –v- City and Hackney Health Authority  4 All ER 771:
- Bolam - a healthcare practitioner will be considered ‘negligent’ if he or she has not acted in accordance with a practice accepted as proper and reasonable by a responsible body of medical practitioners, skilled in that particular field.
- Bolitho - the independent professional opinion (expert evidence) called in support of a practitioner’s defence, must be capable of withstanding logical analysis, otherwise it will not be considered reasonable or responsible.
It is therefore necessary to assess the extent to which the risk of self-harm was (or should have been) evident, including analysing any previous self-harm incidents or suicide attempts and the measures put in place thereafter to protect the prisoner.
Consideration is likely to be given to the following:
- The vulnerability of the prisoner (including any mental health issues, learning disabilities and/ or other healthcare needs, as well as the risk of self-harm or suicide).
- Information sharing between organisations.
- Safety (including emergency response systems).
- Staffing levels and staff training.
As an organisation you will want to take steps to obtain statements from the staff involved at the very earliest opportunity, before memories fade, as well as early expert evidence if required.
The test is whether the identified breach of duty caused the death; in other words ‘but for’ the negligent act or omission, would the deceased have survived?
Whilst the focus is often on the staff involved in the prisoner’s care, it is also important to give consideration to the role of the deceased, other prisoners and the prisoner’s familial relationships, which can sometimes be equally causative.
Furthermore, in many cases a prisoner will be ‘set’ on taking their own life, particularly if he or she has recently been charged with or convicted for a particularly serious crime or been given a lengthy sentence and, despite very best endeavours, they will often take the first possible opportunity to do so. As such, whilst ‘but for’ the breach they may not have taken their life at that time, it may be possible to show that they would have managed to do so within a relatively short period of time thereafter. Independent expert evidence will usually be needed to maintain this argument.
Where failings are identified in the healthcare provided to the prisoner at the ‘end’ organisation where the death occurs, the story does not end there. Many prisoners will have travelled through numerous organisations whilst incarcerated and the death may well be the result of an accumulation of matters in the months, weeks or days leading up to the death. It may therefore be necessary to investigate other potentially contributory factors and the possible role played by other organisations and individuals.
Where potential liability (or at least significant vulnerability) is identified internally, the next consideration should always be whether there are any potential co-defendants, for example:
- The Ministry of Justice in relation to each public prison involved (in connection with the acts or omissions of the disciplinary staff for whom it is vicariously liable (The question whether the Ministry of Justice may also owe ‘non-delegable duties of care in relation to prison healthcare is currently the subject of much debate with somewhat inconsistent approaches taken in the prison and immigration detention contexts respectively in Morgan –v- Ministry of Justice  EWHC 2248 (QB) and GB –v- Home Office  EWHC 819 (QB)).
- Any other healthcare providers involved in the deceased’s care, including in any other prisons where failings may have been identified there.
- The police, escort companies or other organisations (particularly if information has not been relayed regarding a suicide risk identified whilst in police custody for example).
Each organisation is responsible for the acts and omissions of its own staff and it is often a combination of factors which provides the prisoner with the window of opportunity in which to take his or her own life.
The Prisons and Probation Ombudsman (PPO) will investigate every death in custody and produce a detailed report, and the recommendations made should assist in identifying potential codefendants.
It is important to make contact with any other organisations involved as soon as possible, with a view to considering early admissions and apologies where indicated, to help provide families with closure and to reduce inquest and litigation costs.
It is also important to remember that, in many cases a finding of contributory negligence may be made, which can reduce damages by approximately 50%, if the prisoner was of sound mind at the time that he or she took their own life (Reeves –v- Commissioner of Police of the Metropolis  1 AC 360 (HL)).
Engagement of the Human Rights Act 1998 and Article 2 of the ECHR
Claims for clinical negligence are usually made in conjunction with claims under the Human Rights Act 1998 for an alleged breach of Article 2 (the right to life).
Article 2 imposes three main duties on custodians:
- A negative duty to refrain from taking life.
- A positive duty to protect life by establishing general protective systems and by taking reasonable steps to tackle any ‘real and immediate’ risks to life.
- A positive duty to assist with an effective official investigation into all deaths in custody.
In the past it was more difficult for a claimant to establish a breach of the positive protective duty imposed by Article 2, as compared with clinical negligence. However, the relevant standards have recently moved closer together and there may well be little point in conceding negligence but defending allegations in relation to Article 2.
Top 5 tips for managing claims following self-inflicted deaths in custody
Claims for clinical negligence and an alleged breach of Article 2 follow many selfinflicted deaths in custody. Our top 5 tips are:
- Obtain statements from the staff involved at the very earliest opportunity (there is no need to wait until after the PPO report has been finalised).
- Consider obtaining early expert evidence to investigate the liability position. A Head of Healthcare at another (unconnected) organisation may be a good place to start to provide an ‘overview’ report.
- Examine the prisoner’s relationships with other prisoners and his family/friends and whether this may have precipitated the death. In addition, whether the prisoner may have taken his or her own life in any event, at that time, or some time later and/or whether he/she was of sound mind at the time of death.
- Take time to consider the PPO report in detail; not just focussing upon any failings highlighted within your own organisation, but those identified in respect of other organisations, and whether they should be brought into the proceedings as codefendants.
- Make early contact with potential co-defendants with a view to making early admissions and apologies on a joint basis where indicated to assist bereaved families and minimise costs.
Deaths in prison (England & Wales) 1990-date
Click here to view table.